DeFunis v. Odegaard

In DeFunis v. Odegaard (1974), a law school applicant challenged the University of Washington Law School’s race-conscious admission policy, charging that his rejection constituted discrimination. DeFunis is important because it was the first dispute to reach the Supreme Court involving voluntary affirmative action or admission policy in a postsecondary school context. The justices had addressed court-ordered affirmative action policies in formerly segregated colleges and universities. By the time the DeFunis case reached the Court, the applicant who challenged the policy had nearly completed his studies, so the justices declared the case moot and made no ruling on the merits.

Facts of the Case

Marco DeFunis, a White male, applied for admission to the state-operated University of Washington but was denied. The university’s law school received 1,600 applications for approximately 150 seats in the first-year class. Therefore, as a selective institution, the law school had an admission policy to determine who would be offered admission. The policy used a formula to predict each applicant’s first-year grades. The formula included an applicant’s score on Law School Admission Test (LSAT) and undergraduate grades. Applicants were placed into two groups. Applicants who indicated they were “Black, Chicano, American Indian, or Filipino” were placed in a separate group and were never directly compared to applicants who were not minorities.

DeFunis filed suit in state court, arguing that the selection process discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment. A state trial court agreed and ordered the law school to admit Mr. DeFunis. By the time he was in his second year of the three-year program, the Supreme Court of Washington overturned the original decision, finding that the law school’s admission policy was constitutional. Mr. DeFunis next appealed to the U.S. Supreme Court.

The Court’s Ruling

In a per curiam opinion in DeFunis, the Supreme Court refused to address whether the admission policy violated the plaintiff’s rights under the Equal Protection Clause on the ground that the case was “moot,” meaning that there was no longer a question that it could answer. In DeFunis, the majority ruled that because Mr. DeFunis was in his final quarter of law school and about to graduate when the court heard the case, he was no longer injured by the admission policy, and, therefore, there was nothing that it was being asked to decide. Four justices dissented on the basis that because the university was still applying the race-based admission policy, the Court should have resolved, on the merits, whether the law school’s voluntary affirmative action program was constitutional.

The Court’s unwillingness in DeFunis to judge the merits of the University of Washington Law School’s policy notwithstanding, Justice Douglas, in a dissent, analyzed its content. He pointed out that the law school contended that it considered the race and ethnicity of applicants as one factor in the admission process due to its concern that minorities were discriminated against in law school admissions in the past and because there was a lack of minority lawyers in Washington. Justice Douglas was concerned that even though a precise number of seats were not set aside for minority students, the policy accorded a preference.

Although Justice Douglas did not conclude that the policy was unconstitutional, he advocated for a new trial to determine whether the LSAT should have been eliminated as a criteria for racial minorities. He noted that standardized tests had been used in the past to disqualify Jewish applicants and his concern that the LSAT might have the same impact on other minority groups.

Four years after DeFunis, the Supreme Court would have to confront the question of a race-based admissions policy directly in Regents of the University of California v. Bakke (1978). The facts of DeFunis and Bakke are similar. Both cases involved admissions policies where minorities were considered separately from White applicants. In Bakke, also a per curiam opinion, the Court struck down the University of California’s program on the ground that it was an impermissible race discrimination but left open the question of whether the goal of diversity was a permissible reason to consider the race of applicants. It was not until 2003, in Grutter v. Bollinger and the companion case Gratz v. Bollinger, that the Court finally found that the educational benefit of a diverse student body is a compelling state interest that justifies the consideration of race in university admissions if the use of race is narrowly tailored to meet the compelling governmental goal of diversity.